Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, No. 1220607 Thomas P. Anderle, Judge.
Law Office of Mark J. Leonardo, Mark J. Leonardo, Marco A. Cosentino; Alyson T. Marchiondo for Plaintiff and Appellant.
Stephen P. Wiley, City Attorney, Tom R. Shapiro, Assistant City Attorney, for Defendant and Respondent.
PERREN, J.
Victoria Kennedy appeals from a summary judgment granted in favor of the City of Santa Barbara (City) on her personal injury complaint. (Code Civ. Proc., § 437c.) The trial court ruled that there was no basis for concluding that her injury was caused by a dangerous condition of public property because the defect alleged to have caused the injury was trivial within the meaning of Government Code sections 830 and 830.2. We affirm.
Facts and Procedural History
Victoria Kennedy owns a sailboat which she has moored at Santa Barbara Harbor for about 10 years. On June 30, 2005, Kennedy was leaving her sailboat to return to her car parked in a harbor parking lot, when she tripped and fell over a raised panel on the floating concrete walkway leading to her slip. The accident occurred between noon and 1:00 p.m. The weather was clear. Pictures taken at the scene indicate that there was no debris, shadows, or other matter that might have obscured the condition of the walkway. Kennedy told the responding harbor patrol officer and police officer that she was familiar with the raised sidewalk before the time of her fall. According to the harbor patrol officer's report, Kennedy told him that she had tripped in this area several times in the past and had made complaints to the waterfront department.
Kennedy filed a complaint alleging a dangerous condition of public property and negligence. After answering, the City filed a motion for summary judgment on that ground that there was no basis for concluding that there was a dangerous condition of public property in that the defect alleged to have caused the accident was trivial within the meaning of Government Code sections 830 and 830.2.
Government Code section 830.2 provides: "A condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used."
The parties submitted photographs of the walkway taken on the day of the accident and shortly thereafter. From these photos, the trial court described the sidewalk as follows: "They make clear that in the center of the walkway where one concrete slab meets another, there is an approximately 3/8 of an inch rise. The second slab then has a relatively level (with a very slight grade) portion, which then again rises a total of another 3/8 of an inch within a couple of inches from the first rise. The total rise is approximately 3/4 of an inch. The area shows evidence of past repair, given the existence of patching material of a slightly different hue than the remainder of the walkway." Kennedy also submitted an expert witness declaration that the defect in the walkway was not trivial.
The court ruled the risk presented by the raised concrete panel was trivial as a matter of law, citing Whiting v. City of National City (1937) 9 Cal.2d 163 and Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, and granted the City's summary judgment motion.
In this appeal, Kennedy asserts the trial court erred in granting summary judgment because the defect did not consist of merely misaligned concrete slabs, but rather a misaligned slab and a protrusion caused by sunken concrete at the base of a fracture in the concrete.
DISCUSSION
"The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) The trial court's grant of summary judgment is subject to de novo review. (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 18.) We review the trial court's evidentiary rulings for abuse of discretion. (People v. Zambrano (2007) 41 Cal.4th 1082, 1144.)
As incorporated in section 830.2, the trivial-defect doctrine protects property owners from liability for insignificant defects: "The rule which permits a court to determine 'triviality' as a matter of law rather than always submitting the issue to a jury provides a check valve for the elimination from the court system of unwarranted litigation which attempts to impose upon a property owner what amounts to absolute liability for injury to persons who come upon the property." (Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 399.)
"'Whether property is in a dangerous condition often presents a question of fact, but summary judgment is appropriate if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines that no reasonable person would conclude the condition created a substantial risk of injury when such property is used with due care in a manner which is reasonably foreseeable that it would be used. (Gov. Code, § 830.2.)'" (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234.)
In determining whether a defect is trivial as a matter of law, the court is not to consider only the size of the defect, although size may be one of the most relevant factors to the decision. (Fielder v. City of Glendale, supra, 71 Cal.App.3d 719, 734.) "Instead, the court should determine whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract depth would indicate." (Ibid.) Some of the circumstances include whether the defect consisted of a "mere difference in level of two adjacent horizontal slabs as distinguished from a protrusion such as a piece of steel reinforcement (rebar) sticking above the concrete, whether the accident occurred in an area where the view of the defect is obstructed, whether the defect resulted in injuries to persons other than the claimant, [fn. omitted] the shape and configuration of the defect, [and] whether it occurred at night in an unlighted area . . . ." (Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 267-268.)
A number of cases have examined defects in floors and sidewalks and have concluded that elevation changes of about an inch or less, in the absence of any other aggravating factors, are trivial and not a basis for imposing liability. (Fielder v. City of Glendale, supra, 71 Cal.App.3d 719, 725-726; Ursino v. Big Boy Restaurants, supra, 192 Cal.App.3d 394, 396-398 [three-fourths inch differential between two sidewalk slabs]; Whiting v. City of National City, supra, 9 Cal.2d 163, 165-166 [three-fourths inch differential in sidewalk elevation too trivial to impart constructive notice]; Ness v. City of San Diego (1956) 144 Cal.App.2d 668, 673 [seven-eighths inch differential in sidewalk slabs].) The instant matter is just such a case. This case falls in the Fielder line of cases because the height differential was minor, below one inch, and there were no "aggravating" factors or surrounding circumstances that rendered the height differential dangerous. Kennedy admitted that she had an unobstructed view of the sidewalk in front of her, the weather was sunny and dry, and she had navigated the walkway with the defect for years.
Sidewalk breaks of no greater dimensions (than one inch) were held, along with other circumstances, to present questions of fact for the jury in Johnson v. City of Palo Alto (1962) 199 Cal.App.2d 148 [affirmed judgment in plaintiff's favor after court trial where fall occurred at night and trees made sidewalk shadowy]; Rodriguez v. City of Los Angeles (1963) 215 Cal.App.2d 463 [affirmed jury award for plaintiff where four prior accidents occurred at site and city had actual notice of defect]; and Barone v. City of San Jose (1978) 79 Cal.App.3d 284, 291-292 [city had not established crack in sidewalk that appeared to create about one-inch differential was trivial defect where only evidence was three copied photographs which were imprecise and susceptible of various interpretations and where plaintiff had not been able to obtain city's records relating to prior accidents, and issue had not been fully explored].)
Kennedy's reliance on the Johnson, Rodriguez, and Barone cases is misplaced. Johnson presents the additional factors of a nighttime fall where trees also made the view of the sidewalk "shadowy." Rodriguez is procedurally and factually distinguishable because it involved the affirmance of a jury award for the plaintiff where the city had actual notice of the dangerous condition and there was no issue concerning the sufficiency of the evidence as to the existence of a dangerous condition. In Barone, the court reversed summary judgment because the city had not developed an adequate record of the circumstances surrounding the accident, submitting only three poor-quality copied photographs of the sidewalk, and the plaintiff had not had an opportunity to discover the city's records relating to possible prior accidents. The record in Barone was held to be insufficient to enable the court to resolve the issue of whether the defect was trivial in favor of the city. (Barone v. City of San Jose, supra, 79 Cal.App.3d 284, 291-292.)
Also misplaced is Kennedy's reliance on Dolquist v. City of Bellflower, supra, 196 Cal.App.3d 261, where the heel of plaintiff's shoe caught on a piece of rebar protruding one-quarter inch from a concrete tire-stop over which she was stepping. In reversing summary judgment, the Dolquist court distinguished cases like this one: "Unlike sidewalk cases, where the planes are horizontal, a protrusion such as a piece of metal rebar located in an area where foot traffic occurs poses a greater danger, especially where, as here, persons must step up from the plane they are walking on to a higher plane in order to continue on their route. In the case at bar, the protrusion was large enough to cause an injury while being small enough to avoid easy detection. The condition was not one that resulted from wear or tear, nor was it the result of a change in the weather; it was one that existed from the date of installation of the concrete tire-stop and remained constant." (Id. at p. 270.)
Accordingly, despite the opinion of dangerousness offered by Kennedy's expert, we conclude that the alleged defect was trivial as a matter of law. (See Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 705 ["the fact that a witness can be found to opine that such a condition constitutes a significant risk and a dangerous condition does not eliminate this court's statutory task, pursuant to section 830.2, of independently evaluating the circumstances"].)
We conclude that the trial court properly focused upon the walkway, was correct in finding no "aggravating circumstances," and properly ruled that the purported defect was "trivial." (Fielder v. City of Glendale, supra, 71 Cal.App.3d 719, 731-732.) The day was clear. Kennedy had prior knowledge of the defect, and nothing in the surrounding circumstances shows that the defect was hidden on the day of the accident. As the court in Whiting pointed out: "It is a matter of common knowledge that it is impossible to maintain a sidewalk in a perfect condition. Minor defects are bound to exist. A municipality cannot be expected to maintain the surface of its sidewalks free from all inequalities and from every possible obstruction to travel. Minor defects due to continued use, or action of the elements, or other cause, will not necessarily make the city liable for injuries caused thereby. What constitutes a minor defect is not always a mere question of fact. If the rule were otherwise the city could be held liable upon a showing of a trivial defect." (Whiting v. City of National City, supra, 9 Cal.2d 163, 165.)
Although Kennedy asserted she had made complaints to the City, she provided no admissible evidence of that fact.
The judgment is affirmed. Respondent shall recover costs.
We concur: GILBERT, P.J., YEGAN, J.
Government Code section 830 provides: "As used in this chapter: [¶] (a) 'Dangerous condition' means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used."
All further statutory references are to the Government Code unless otherwise stated.